The decriminalisation of homosexuality in India through the Supreme Court’s decision in Navtej Singh Johar v. Union of India (2018) stands as a landmark moment in the history of constitutional law and human rights. For over 150 years, Section 377 of the Indian Penal Code, enacted during British colonial rule in 1860, criminalized “carnal intercourse against the order of nature,” a vague phrase that was used to penalize consensual same-sex relationships. The law not only criminalized private acts between consenting adults but also legitimized stigma, discrimination, and violence against members of the LGBTQ+ community.
The challenge to Section 377 had a long history. In 2009, the Delhi High Court in Naz Foundation v. Government of NCT of Delhi decriminalized consensual same-sex relations, holding that Section 377 violated fundamental rights under Articles 14, 15, and 21. However, this progressive step was overturned in Suresh Kumar Koushal v. Union of India (2013), where the Supreme Court reinstated Section 377, reasoning that the LGBTQ+ community constituted only a “minuscule fraction” of the population and that Parliament, not the courts, should decide on the issue. This regression was widely criticized for ignoring constitutional guarantees and perpetuating inequality.
The tide turned in 2017 with Justice K.S. Puttaswamy v. Union of India, where a nine-judge bench of the Supreme Court unanimously affirmed the right to privacy as a fundamental right under Article 21. Importantly, the Court recognized that privacy includes sexual orientation, decisional autonomy, and bodily integrity. This judgment laid the foundation for revisiting Section 377. In Navtej Johar, a five-judge Constitution Bench unanimously struck down Section 377 to the extent it criminalized consensual sexual conduct between adults. The Court declared that sexual orientation is an inherent part of identity and that criminalizing it violates dignity, liberty, and equality.
Each of the judges delivered concurring but nuanced opinions. Chief Justice Dipak Misra stressed that constitutional morality must prevail over social morality, and that majority disapproval cannot dictate the rights of minorities. Justice Rohinton Nariman emphasized the violation of Article 14, holding that Section 377 was manifestly arbitrary. Justice D.Y. Chandrachud invoked the values of transformative constitutionalism, arguing that the Constitution must be interpreted in a way that advances liberty and inclusivity. Justice Indu Malhotra memorably stated that “history owes an apology” to the LGBTQ+ community for the injustice and suffering caused by Section 377.
The judgment in Navtej Johar went beyond merely decriminalizing homosexuality; it affirmed the equal citizenship of LGBTQ+ persons. It recognized that the Constitution protects the rights of all individuals, irrespective of sexual orientation, under Articles 14, 15, 19, and 21. The decision was hailed as a victory for human dignity and an affirmation that the law cannot be used to enforce societal prejudices. It placed India among the progressive democracies that acknowledge the right to sexual autonomy as part of fundamental freedoms.
Despite this breakthrough, the road ahead remains challenging. Decriminalisation has not automatically translated into full equality. Issues of same-sex marriage, adoption rights, inheritance, and protection from discrimination in employment and housing remain unresolved. In 2023, the Supreme Court in Supriyo Chakraborty v. Union of India declined to recognize same-sex marriages, leaving it to Parliament to legislate. This shows that while Navtej Johar removed criminal stigma, the struggle for substantive equality continues. Social acceptance also lags behind legal reform, with LGBTQ+ individuals still facing discrimination and hostility in many spheres of life.
In conclusion, the decriminalisation of homosexuality under Navtej Johar is a milestone in India’s constitutional journey towards liberty and equality. By striking down Section 377, the Supreme Court corrected a historical wrong, upheld the primacy of constitutional morality, and recognized the dignity of LGBTQ+ persons. Yet, the decision is not the end but the beginning of a longer struggle for full legal and social equality. The road ahead lies in ensuring legislative reforms, societal awareness, and continued judicial support to transform the promise of equality into lived reality for India’s LGBTQ+ community.
